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Sickness absence and disability discrimination

Disability is traditionally considered one of the grounds that may give rise to discrimination issues under Spanish law. Disabled workers and individuals are expressly protected against any discriminatory decision of employers by the Constitution as well as by labour regulations.

Under current legislation, the provision of services by disabled employees must be carried out under conditions that ensure the principle of equality and non-discrimination. Therefore, any regulation, collective agreement, employment condition or company decision that might give rise to discrimination on grounds of disability can be declared null and void and companies adopting such practices can be fined by certain labour authorities.

In addition, Spanish law contains several regulations to promote the employment of disabled employees and improve their labour conditions. As an example, companies employing disabled employees enjoy significant tax incentives and reductions in social security contributions; and companies with more than 50 workers are required to employ a percentage of disabled employees (at least a 2% of the total headcount), or undertake other alternative measures to support disabled workers.

On the other hand, companies have to guarantee the protection of those employees that are especially vulnerable to occupational risks due to their mental or physical disability, adopting all necessary preventive and protective measures. Accordingly, hiring and placement of an employee in a position which might be incompatible with his or her disability or entails risks can result in relatively high administrative penalties.

By contrast, employee sickness has not received a uniform treatment by Spanish courts and tribunals over recent years.

Initially, sickness was often compared with disability and many courts declared employers’ decisions related to employees’ health as discriminatory and therefore null and void. This was typically the case of employees who were dismissed during a temporary sickness absence and claimed that their employment termination was discriminatory.

However, the Spanish Supreme Court, heavily influenced by the European Court of Justice case law starting with the Chacón Navas case, declared in 2007 and 2009 that health conditions are not included in the causes of discrimination set out in the Spanish Constitution and that dismissal for temporary sickness alone does not directly imply discrimination. Thus, while the dismissal of an employee based on disability will be declared discriminatory and, for that reason, null and void, the dismissal of an employee based on health conditions might be declared unfair but not discriminatory and null and void unless there are additional circumstances. Spanish courts should analyse each claim on a case by case basis.

Despite these considerations, it should be noted that the recent European Court of Justice judgment in Ring case, which provides for a wider concept of "disability", will probably impact in Spanish courts, with judgments adopting a more protective line for employees absent for sickness reasons.